The essential method of compliance with Guckenberger III is to balance the interests of the university with the interests of the handicapped student. Section 504 of the Rehabilitation Act and the Americans with Disabilities Act ("ADA") strictly prohibits universities from discriminating against qualified students with disabilities. In relevant part for this analysis, Section 504 mandates that "no otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefit of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 29 U.S.C. 794(a). Titles II and III of the ADA make similar provisions for public services and public accommodations which public universities are required to follow. 42 U.S.C. 12132 and 12182(a). The ADA defines discrimination to include "a failure to make reasonable modifications in policies, practices or procedures, when such modifications are necessary to afford . . . services . . . to individuals with disabilities unless the entity can demonstrate that making such modifications would fundamentally alter the nature of the . . . services." 42 U.S.C. 12182(b)(2)(A)(ii). Universities are obligated to provide reasonable accommodations. In deciding to maintain the integrity of university curriculum and apply it evenly throughout, a balancing test is required. Clearly starting point for examining whether a course substitution or alteration is a reasonable academic adjustment starts with the Supreme Court's pronounced interpretation that "Section 504 imposes no requirement upon an educational institution to lower or to effect substantial modifications of standards to accommodate a handicapped person." Southeastern Community College v. Davis, 442 U.S. 397, 413 (1979). The Southeastern court found that there is a line between alteration and accommodation. It found that being excused from taking the clinical part of the nursing program was an unacceptable accommodation and that Southeastern did not have to make that accommodation to a hearing impaired individual. It is against this backdrop that all colleges and universities should base their own academic policies in regards to accommodation but the decision should be made by an knowledgeable committee.
2. After reviewing the court's opinion in Guckenberger II, how would you advise the head of the office of disability services with respect to balancing the institution's concern for upholding academic standards with the requirements of the ADA and Section 504
The head of of the office of disability services would be advised by legal counsel that the university is required to make modifications only to "known" and validated disabilities. Thus, the university should require that it be put on reasonable notice of the request for modification (34 CFR 104.44) (Attorney, 2009). The request for modification should be submitted in writing to the Office of Disability Support Services. From there the university should make efforts to accommodate reasonable modifications in policies, practices, or procedures when the modifications are necessary. Modifications are deemed necessary when and if they "ensure that no